The FBI has done everything it could to keep the existence and use of stingrays a secret. Local law enforcement agencies are forced to sign nondisclosure agreements before they can use the devices. The FBI claims that revealing details about how the gadgets work would tip off criminals and terrorists, rendering them less effective.
But in recent months, civil liberties groups have steadily chipped away at the secrecy of these devices. We've learned that they're used by dozens — and probably hundreds — of law enforcement agencies across the country, and that at least one agency has used them thousands of times.
Critics say the way these devices have been used violates the US Constitution, by tracking people's locations without judicial oversight. And the secrecy surrounding the devices also appears to be hampering efforts to prosecute violent criminals, as prosecutors have dropped key evidence rather than discuss how it was obtained.
The extreme secrecy surrounding these devices is out of step with the American tradition of open and accountable government. Americans have a right to know that law enforcement spying has proper judicial oversight. And this kind of oversight is impossible if even basic information about the technology is kept under wraps.
Stingrays are fake cellphone towers police use to spy on people
How often are the devices used? Most police departments won't say. But police in Baltimore recently admitted that they've used the device 4,300 times. And we don't know how many of these uses occurred with court approval — we'll discuss the legal issues more below.
The FBI has closely guarded the secrecy of stingray technology
We know that many law enforcement agencies use this technology, but we don't know how many agencies use the devices or how often they do so. That's because an elaborate scheme has mostly kept the devices out of the public eye until recently.
Because stingrays emit radio waves, they must be approved by the Federal Communications Commission before they can be used. Harris Corporation, the leading manufacturer of the devices, asked the FCC to require state and local law enforcement agencies to get approval from the FBI before they can use the devices. And the FBI, in turn, requires law enforcement agencies to sign nondisclosure agreements in order to get access.
The FBI declined to comment for this story, but a spokesman sent me a copy of a 2014 affidavit from an FBI official explaining why the agency requires that information about the devices be kept secret. The FBI says that giving the public details about how stingray technology works or how it's used could provide criminals and terrorists with information that allows them to "develop defensive technology, modify their behaviors, and otherwise take countermeasures designed to thwart the use of this technology."
The FBI thinks that releasing even seemingly minor information can cause harm, since the bad guys can piece together different bits of information to learn how stingrays work and how they can be evaded.
Earlier this month, the New York Civil Liberties Union obtained a copy of the nondisclosure agreement the FBI asked the sheriff's office in Erie County, New York, to sign in order to use cell-site simulators. The agreement bars recipients from telling anyone about the devices, and specifically prohibits Erie County law enforcement from disclosing information about stingray technology in court.
Stingray secrecy appears to be hampering prosecutions
The FBI's gag order appears to be undermining efforts to prosecute violent criminals. This week, for example, the St. Louis Post-Dispatch reported that the St. Louis city police chose to drop the prosecution of three men charged in a violent robbery spree shortly before a government witness would have had to testify about the use of stingray devices in the case. Prosecutors say the timing was a coincidence.
In a Baltimore case last year, prosecutors chose to drop evidenceabout the location of a suspect's phone after an angry judge insisted that police explain how they had located it. In Florida, prosecutors offered a defendant a generous plea deal to avoid having to comply with a judge's order to show a stingray device to the defendants' lawyers.
If the FBI continues insisting on keeping the devices secret, this problem is only going to get worse. In the past, defense attorneys didn't know that stingrays existed, so they didn't ask questions about them. But now defense lawyers not only know the devices exist, they also know that pressing for information about them can force prosecutors to drop the case. So expect law enforcement to face a lot more awkward questions about this in the coming months.
Meanwhile, there are signs that judges are getting fed up with the secrecy surrounding stingrays. When a Baltimore police officer said he was barred from discussing the stingray in court due to a nondisclosure agreement, Baltimore Judge Barry Williams retorted, "You don't have a nondisclosure agreement with the court," and threatened to hold the cop in contempt if he didn't answer the question.
